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Interest of the Amici Curiae No. 12-536 In The Supreme Court of the United States SHAUN MCCUTCHEON AND THE REPUBLICAN NATIONAL COMMITTEE, Plaintiffs-Appellants, v. FEDERAL ELECTION COMMISSION, Defendant-Appellee. On Appeal From The United States District Court For The District of Columbia BRIEF AMICUS CURIAE OF PROFESSOR LAWRENCE LESSIG IN SUPPORT OF APPELLEE DOUGLAS T. KENDALL ELIZABETH B. WYDRA* *Counsel of Record DAVID H. GANS CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th St., NW, Ste 501 Washington, D.C. 20036 (202) 296-6889 [email protected] Counsel for Amicus Curiae i TABLE OF CONTENTS Page TABLE OF CONTENTS ........................................... i TABLE OF AUTHORITIES ....................................iii INTEREST OF AMICUS CURIAE......................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT............................................................. 1 ARGUMENT............................................................. 5 I. THE CONSTITUTION’S TEXT, HISTORY, AND STRUCTURE REFLECT THE FRAMERS’ BROAD INTEREST IN PREVENTING THE APPEARANCE AND REALITY OF CORRUPTION .....................5 A. In Drafting The Constitution, The Framers Were Keenly Concerned With Preventing Both “Dependence Corruption” And Quid Pro Quo Corruption …………………………………5 B. The Text Of The Constitution Provides Specific Restrictions Designed To Limit Temptations And Opportunities For Corruption In Government…………….11 C. The Constitution’s Structure Was Designed To Erect “Every Practicable Obstacle” Against Corruption …………15 ii II. CONSTITUTIONAL AMENDMENTS HAVE EXPANDED PROTECTION AGAINST CORRUPTION ……………………………….21 III. COURT PRECEDENT REFLECTS THE FRAMERS’ UNDERSTANDING THAT THE GOVERNMENT HAS BROAD AUTHORITY TO COMBAT CORRUPTION …………...…26 CONCLUSION ....................................................... 32 iii TABLE OF AUTHORITIES Page Cases Arizona v. Inter Tribal Council, 133 S. Ct. 2247 (2013) .................................... 8, 19 Buckley v. Valeo, 424 U.S. 1 (1976) ........................................ passim Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) .............................. 3, 5, 23, 27 Ex Parte Yarbrough, 110 U.S. 651 (1884) ............................................ 27 Fed. Election Comm’n v. Nat’l Conservative PAC, 470 U.S. 480 (1985) ............................................ 28 McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003) .............................. 5, 11, 28, 30 Stromberg v. California, 283 U.S. 359 (1931) ............................................ 22 Constitutional Provisions and Legislative Materials U.S. CONST. art. I, § 2, cl. 2 .................................... 14 U.S. CONST. art. I, § 3 ............................................. 23 U.S. CONST. art. I, § 3, cl. 3 .................................... 14 U.S. CONST. art. I, § 4, cl. 1 .................................... 19 iv TABLE OF AUTHORITIES—continued Page U.S. CONST. art. I, § 6, cl. 2 .................................... 11 U.S. CONST. art. I, § 9, cl. 8 .................................... 13 U.S. CONST. art. II, § 1, cl. 5................................... 15 U.S. CONST. art. II, § 2, cl. 2 .................................... 17 U.S. CONST. amend. I.............................................. 23 U.S. CONST. amend. XXVII..................................... 27 120 CONG. REC. (1974) ............................................ 30 Sen. Joseph Bristow, The Direct Election of Senators, in CONGRESSIONAL SERIAL SET ISSUE 6177 (U.S. G.P.O. 1912) ............................... 25, 26 Books, Articles and Miscellaneous 18 Op. Off. Legal Counsel 13 (1994) ...................... 13 AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998)......................... 22, 26 Zachary S. Brugman, The Bipartisan Promise of 1776: The Republican Form and its Manner of Election (2012) ..................................................... 20 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE CONSTITUTION (ELLIOT’S DEBATES) (Jonathan Elliot ed.) (1836) .. 2, 6, 19, 20 v TABLE OF AUTHORITIES—continued Page THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed. 1966)...................... passim Lisa Hill, Adam Smith and the Theme of Corruption, 68 REV. POL. 636 (2006) .................. 14 Lawrence Lessig, A Reply to Professor Hasen, 126 HARV. L. REV. 61 (2013) ................................ 14 LAWRENCE LESSIG, REPUBLIC, LOST (2011)...... 11, 14 DAVID ROBERTSON, DEBATES AND OTHER PROCEEDINGS OF THE CONVENTION OF VIRGINIA (2d ed. 1805) (1788) ............................................ 13 THE FEDERALIST PAPERS (Clinton Rossiter ed. 2003).......................... passim Ralph A. Rossum, The Irony of Constitutional Democracy: Federalism, The Supreme Court, and the Seventeenth Amendment, 36 SAN DIEGO L. REV. 671 (1999).......................................... 22, 23 James D. Savage, Corruption and Virtue at the Constitutional Convention, 56 J. POL. 174 (1994) ...................................... 6, 7, 9 Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 341 (2009) ........................ 7, 18 vi TABLE OF AUTHORITIES—continued Page John Joseph Wallis, The Concept of Systematic Corruption in American History, in CORRUPTION AND REFORM: LESSONS FROM AMERICA’S ECONOMIC HISTORY (Edward L. Glaeser & Claudia Goldin eds. 2006) .............................................................. 9 1 INTEREST OF AMICUS CURIAE1 Lawrence Lessig is Professor of Law at Harvard Law School and Director of the Edmond J. Safra Foundation Center for Ethics. He teaches constitutional law and institutional ethics, and his scholarship has analyzed corruption, the Constitution, and Court precedent. Professor Lessig is the author of REPUBLIC, LOST: HOW MONEY CORRUPTS CONGRESS—AND A PLAN TO STOP IT (2011) and dozens of law review articles on constitutional law, including What an Originalist Would Understand “Corruption” to Mean, CAL. L. REV. (forthcoming 2013). Professor Lessig’s recent research into the Founders’ conception of “corruption,” which includes a catalogue of the instance and context of each use of the word “corruption” during the Founding debates, is the core of this brief. INTRODUCTION AND SUMMARY OF ARGUMENT Appellant McCutcheon and the Republican National Committee (collectively “McCutcheon”) contend that the federal aggregate contribution limits impose substantial burdens on First 1 The parties have consented to the filing of this brief and their letters of consent have been filed with the Clerk. Under Rule 37.6 of the Rules of this Court, amicus states no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae or his counsel made a monetary contribution to the brief’s preparation or submission. 2 Amendment freedoms and cannot be justified by any constitutionally legitimate interest, and in particular, by the interest in avoiding corruption. McCutcheon Br. at 34-48. McCutcheon’s argument, however, depends upon a modern understanding of the term “corruption,” in sharp conflict with the term’s original meaning. The Framers viewed corruption as one of the greatest threats to government. They considered anti-corruption measures essential to an enduring republican system of government. As George Mason warned his fellow delegates at the Constitutional Convention, “if we do not provide against corruption, our government will soon be at an end.” 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 392 (Max Farrand ed. 1966) (“FARRAND’S RECORDS”). Thus, in drafting the Constitution, the Framers sought to ensure that “corruption was more effectually guarded against, in the manner this government was constituted, than in any other that had ever been formed.” 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 302 (Jonathan Elliot ed. 1836) (Pinckney). The Framers had a very specific conception of the term “corruption” in mind, one at odds with McCutcheon’s more modern understanding of that term. For the Framers, “corruption” predicated of institutions as well as individuals, and when predicated of institutions, was often constituted by an “improper dependence.” Having seen, for example, the English Parliament corrupted by its dependence on the King, the Framers crafted the 3 Constitution to avoid such improper dependencies. In the case of the House in particular, they sought an institution “dependent on the people alone,” THE FEDERALIST NO. 52, at 294 (Madison) (Clinton Rossiter ed. 1961). Any conflicting dependence— such as upon foreign patrons—would “corrupt” that intended dependence, and in turn threaten to corrupt the nation’s fledgling republican institutions. Amicus’s review of Framing-era usage of the word “corruption”—catalogued in the Appendix, which serves as a companion to the online interactive database http://ocorruption.tumblr.com, and submitted to this Court for the first time— demonstrates that the need to prevent such “dependence corruption” dominated the discussions of “corruption” over the adoption and ratification of the Constitution. This research establishes that (1) the Framers’ dominant concern was the corruption of the institutions of government, not individuals; (2) the Framers recognized that democratic institutions could be corrupted through developing conflicting dependencies, as they had in England; and (3) corruption of individual officeholders by bribery or other forms of quid pro quo corruption
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